[Federal Register Volume 73, Number 24 (Tuesday, February 5, 2008)]
[Notices]
[Pages 6712-6714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-491]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 08-C0003]


Vornado Liquidating Trust for and on Behalf of Vornado Air 
Circulation Systems, Inc., a Trust, Provisional Acceptance of a 
Settlement Agreement and Order

AGENCY: Consumer Product Safety Commission.

ACTION: Notice.

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SUMMARY: It is the policy of the Commission to publish settlements 
which is provisionally accepts under the Consumer Product Safety Act in 
the Federal Register in accordance with the terms of 16 CFR 
1118.20(e0). Published below is a provisionally-accepted Settlement 
Agreement with Vornado Liquidating Trust for and on behalf of Vornado 
Air Circulation Systems, Inc., a Trust, containing a civil penalty of 
$500,000.

DATES: Any interested person may ask the Commission not to accept this 
agreement or otherwise comment on its contents by filing a written 
request with the Office of the Secretary by February 20, 2008.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 08-C0003, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 502, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Ronald G. Yelnik, Trial Attorney, 
Office of Compliance and Field Operations, Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; 
telephone (301) 504-7582.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears 
below.

    Dated: January 30, 2008.
Todd A. Stevenson,
Secretary.

United States of America Consumer Product Safety Commission, CPSC 
Docket No. 08-C0003

In the Matter of Vornado Liquidating Trust for and on Behalf of Vornado 
Air Circulation Systems, Inc. a Trust

Settlement Agreement and Order

    1. This Settlement Agreement is made by and between the staff (the 
``staff'') of the U.S. Consumer Product Safety Commission (the 
``Commission'') and the Vornado Liquidating Trust, a trust acting for 
and on behalf of Vornado Air Circulation Systems, Inc., a dissolved 
Kansas corporation, and established for the sole benefit of the 
corporation's shareholders, in accordance with 16 CFR 1118.20 of the 
Commission's Procedures for Investigations, Inspections, and Inquiries 
under the Consumer Product Safety Act (``CPSA''). This Settlement 
Agreement and the incorporated attached Order resolve the staff's 
allegations set forth below.

The Parties

    2. The Commission is an independent federal regulatory agency 
responsible for the enforcement of the CPSA, 15 U.S.C. 2051-2084.
    3. Vornado Air Circulation Systems, Inc. was a corporation 
organized and existing under the laws of the State of Kansas, with its 
principal corporate office located in Andover, Kansas. On December 29, 
2006, Vornado Air Circulation Systems, Inc. ceased operations and sold 
most of its operating assets to a private equity group which formed a 
new company, Vornado Air LLC, a Delaware company. Vornado Air 
Circulation Systems, Inc.'s remaining assets and its proceeds from the 
asset sale were assigned to the Vornado Liquidating Trust, which was 
established as of December 29, 2006, for the purpose of satisfying 
Vornado Air Circulation Systems Inc.'s remaining liabilities, including 
the claims asserted by the Commission which are the subject of this 
Settlement Agreement. Vornado Air Circulation Systems, Inc. was legally 
dissolved in September 2007. Vornado Air Circulation Systems, Inc. and 
the Vornado Liquidating Trust are hereinafter referred to collectively 
as ``Vornado'' or the ``firm.''
    4. At all times relevant herein, Vornado designed, manufactured and 
sold portable electric heaters, including those that are the subject of 
this Settlement Agreement and Order.

Staff Allegations

    5. Between July 1991 and January 2004, Vornado manufactured and 
sold approximately one million of the subject portable electric 
heaters, model numbers 180VH [reg], Intellitemp [reg], EVH [reg] 
(collectively, ``Heaters'' or ``Products''), which were sold at 
retailers and distributors nationwide as well as through Vornado's Web 
site, for between $50 and $120.
    6. The Heaters are ``consumer product(s)'' and, at the times 
relevant herein, Vornado was a ``manufacturer'' of ``consumer 
product(s),'' which were ``distributed in commerce'' as those terms are 
defined or used in sections 3(a)(1), (4), (11) and (12) of the CPSA, 15 
USC 2052(a)(1), (4), (11) and (12).
    7. The Heaters are defective because a faulty electrical connection 
can cause the Product to overheat and stop working, thereby posing a 
fire hazard to consumers. More specifically, certain of the Heaters are 
defective and pose a fire hazard to consumers because they contain a 
faulty crimp involving insulated connectors (``quick connects''), a 
flaw which can cause the Heaters to overheat.
    8. Vornado received its first report of an overheating incident in 
January 1993. By the end of 1993, Vornado knew of at least 22 reports 
of Heater incidents involving melting, smoking, burning, actual fire or 
the emission of flame.
    9. On or about October 27, 1997, Vornado changed the design of its 
Heaters to incorporate insulated quick connects on the white wires 
between the heating element and the switch. The redesigned Heaters were 
sold from the fall of 1998 through 2003.
    10. Although Vornado had received reports of Products overheating 
prior to the design change described in paragraph 9, the firm asserts 
that this design change caused the faulty crimp problem which resulted 
in the majority of the overheating incidents that eventually came to 
Its attention.
    11. After implementing the design change in question, Vornado 
received many reports of over-heating incidents with the Heaters, some 
of which involved fires and the emission of flames. These reports 
continued for several years thereafter.
    12. Despite being aware of the information set forth in paragraphs 
5 through 11, Vornado did not report to the Commission about the 
overheating issue involving the heaters until February 20, 2004, and 
even then only when requested to do so by the Commission staff.
     13. By the time of its February 20, 2004 report to the CPSC, 
Vornado was

[[Page 6713]]

aware of at least 300 reports of overheating incidents involving the 
subject Heaters. More than 100 of these incident reports involved 
Heaters catching fire and/or emitting flames, while the remainder 
related to units burning, melting and smoking.
     14. Although Vornado had obtained sufficient information to 
reasonably support the conclusion that the Heaters contained a defect 
which could create a substantial product hazard, or created an 
unreasonable risk of serious injury or death, it failed to inform the 
Commission of such defect or risk as required by sections 15(b)(2) and 
(3) of the CPSA, 15 U.S.C. 2064(b)(2) and (3). In failing to do so, 
Vornado ``knowingly'' violated section 19(a)(4) of the CPSA, 15 U.S.C. 
2068(a)(4), as the term ``knowingly'' is defined in section 20(d) of 
the CPSA, 15 U.S.C. 2069(d).
     15. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Vornado is 
subject to civil penalties for its failure to report as required under 
section 15(b) of the CPSA, 15 U.S.C. 2064(b).

Response of Vornado

     16. Vornado contests and denies the staff's allegations. Vornado 
asserts that it acted responsibly and reasonably to investigate and 
respond to incident reports it received involving the Products, 
including its implementation of a successful product recall in 
cooperation with the Commission on August 3, 2004. Vornado denies it 
was aware of facts that arguably could have given rise to a reporting 
obligation under the CPSA until the time it actually filed a report 
with the Commission on February 20, 2004. Likewise, the firm denies 
that any alleged violation of the CPSA's reporting requirements was 
committed ``knowingly.''
    17. Vornado has entered this settlement in order to resolve this 
claim without the expense and distraction of litigation.

Agreement of the Parties

     18. The commission has jurisdiction over this matter and over 
Vornado under the CPSs, 15 U.S.C. 2051-2084.
     19. In settlement of the staff's allegations, Vornado agrees to 
pay a civil penalty of five hundred thousand dollars ($500,000.00) 
within twenty (20) calendar days of receiving service of the Final 
Order of the Commission accepting this Settlement Agreement. This 
payment shall be made by cashier's check payable to the order of the 
United States Treasury.
     20. The parties enter this Settlement Agreement for settlement 
purposes only. the Settlement Agreement does not constitute an 
admission by Vornado or a determination by the Commission that Vornado 
violated the CPSA's reporting requirements.
     21. Upon provisional acceptance of this Settlement Agreement and 
Order by the Commission, the Commission shall place this Agreement and 
Order on the public record and shall publish it in the Federal Register 
in accordance with the procedure set forth in 16 CFR 1118.20(e). If the 
commission does not receive any written requests not to accept the 
Settlement Agreement and Order within 15 calendar days, the Agreement 
and Order shall be deemed finally accepted on the 16th calendar day 
after the date it is published in the Federal Register, in accordance 
with 16 CFR 1118.20(f).
     22. Upon final acceptance of this Settlement Agreement by the 
Commission and issuance of the Final Order, Vornado knowingly, 
voluntarily and completely waives any rights it may have in this matter 
to the following: (i) An administrative or judicial hearing; (ii) 
judicial review or other challenge or contest of the commission's 
actions; (iii) a determination by the Commission as to whether Vornado 
failed to comply with the CPSA and the underlying regulations; (iv) a 
statement of findings of fact and conclusions of law; and (v) any 
claims under the Equal Access to Justice Act.
     23. The Commission may publicize the terms of the Settlement 
Agreement and Order.
     24. This Settlement Agreement shall apply to, and be binding upon 
Vornado and each of its successors and assigns.
     25. The commission's Order in this matter is issued under the 
provisions of the CPSA, 15 U.S.C. 2051-2084, and a violation of the 
Order may subject those referenced in paragraph 24 above to appropriate 
legal action.
     26. This Settlement Agreement may be used in interpreting the 
Order Agreements, understandings, representations, or interpretations 
made outside of this Settlement Agreement and Order may not be used to 
vary or to contradict its terms.
     27. This Settlement Agreement and Order shall not be waived, 
changed, amended, modified, or otherwise altered, without written 
agreement thereto executed by the party against whom such amendment, 
modification, alteration, or waiver is sought to be enforced, and 
approval by the Commission.
     28. If, after the effective date hereof, any provision of this 
Settelement Agreement and Order is held to be illegal, invalid, or 
unenforceable under present or future laws effective during the terms 
of the Settlement Agreement and Order, such provision shall be fully 
severable. The rest of the Settlement Agreement and Order shall remain 
in full effect, unless the commission and Vornado determine that 
serving the provision materially changes the purpose of the Settlement 
Agreement and Order.

The Vornado Liquidating Trust for and on Behalf of Vornado Air 
Circulation Systems, Inc.

Dated: January 14, 2008.
By: Charles Wear,
Co-Trustee, 2705 West 112th Street, Leawood, Kansas 66211.

Dated: January 14, 2008.
By: Kay Reed,
Co-Trustee, 14021 E. Whitewood, Wichita, Kansas 67230.

Dated: January 15, 2008.
 By Christopher Smith,
Sonnenschein Nath & Rosenthal LLP, 1301 K Street, NW., Suite 600, East 
Tower, Washington, DC 20005-3364, Counsel for the Vornado Liquidating 
Trust.

U.S. CONSUMER PRODUCT SAFETY COMMISSION.
John Gibson Mullan,
Assistant Executive Director, Office of Compliance and Field 
Operations.

Dated: January 17, 2008.
By: Ronald G. Yelenik,
Acting Director,
M. Reza Malihi,
Trial Attorney, Legal Division, Office of Compliance and Field 
Operations.

United States of America Consumer Product Safety Commission, CPSC 
Docket No. 08-C0003

In the Matter of Vornado Liquidating Trust for and on Behalf of Vornado 
Air Circulation systems, Inc., a Trust

Order

    Upon consideration of the Settlement Agreement entered into between 
the Vornado Liquidating Trust, a trust acting for an on behalf of 
Vornado Air Circulation Systems, Inc., a dissolved Kansas corporation, 
and established for the sole benefit of the corporation's shareholders 
(collectively, ``Vornado''), and the staff of the U.S. Consumer Product 
Safety Commission (the ``Commission''), and the Commission having 
jurisdiction over the subject matter and over Vornado, and it appearing 
the Settlement Agreement is in the public interest, it is
    Ordered, that the Settlement Agreement be, and hereby is, accepted; 
and it is
    Further ordered, that Vornado shall pay a civil penalty in the 
amount of five hundred thousand dollars

[[Page 6714]]

($500,000.00). This payment shall be made payable to the order of the 
United States Treasury within twenty (20) calendar days of service of 
the Final Order of the Commission upon Vornado. Upon the failure of 
Vornado to make full payment in the prescribed time, interest on the 
outstanding balance shall accrue and be paid at the federal rate of 
interest under the provisions of 28 U.S.C. section 1961(a) and (b).

    Provisionally accepted and Provisional Order issued on the 30th 
day of January, 2008.

By Order of the Commission:

Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 08-491 Filed 2-4-08; 8:45 am]
BILLING CODE 6355-01-M